Pre-Judgment Interest – The Issue That Will Not Die

Pre-judgment interest is not the Wicked Witch of the East – it will not die. (Do you remember the unseen WWE? Dorothy parked a house on top of her and ended up with her ruby red slippers – much to the chagrin of WWE’s sister, the Wicked Witch of the West.)

Tennessee does not have a statute that unquestionably permits the award of pre-judgment interest in tort cases, either as a matter of right or of discretion. It is fair to say that after a flurry of activity in the 1990s the issue appeared to be dead – until the Tennessee Supreme Court’s opinion in Hunter v. Ura, 163 S.W.3d 686, 706 (Tenn. 2005). That opinion placed pre-judgment interest on a ventilator, with plaintiffs’ lawyers praying for a full recovery and insurance companies searching desperately for the power cord.

Now, Judge Koch and his colleagues on the Middle Section of the Tennessee Court of Appeals have declared pre-judgment interest dead. How dead? Judge Koch could have cited the medical opinion of the Coroner of the Land of Oz (given to a reasonable degree of coroner certainty) to reflect his views of the viability of pre-judgment interest in Tennessee:

“As Coroner I must aver, I thoroughly examined her. And she’s not only merely dead, she’s really most sincerely dead.”

Pointing back to the published opinion in Hollis v. Doerflinger, 137 S.W.3d 625, 630 (Tenn. Ct. App. 2003), the Court said that the Tennessee Supreme Court could not have meant what they said in Hunter v. Ura and that pre-judgment interest was “morally, ethic’lly, spiritually, physically, positively, absolutely, undeniably and reliably dead.”

(Admit it – you sang that last part.)

Well, it’s not – at least until the expiration of sixty days after the opinion in this case was released. The Tennessee Supreme Court will get a chance to resolve this issue once and for all, and it should take the opportunity to either re-affirm Hollis or tell us exactly what the law is on this issue.